Seder/Masechet Nezikin

Bava Kama | Yisrael Bankier | 11 years ago

This week we started a new masechetand a new seder – masechet Bava Kama and seder Nezikin. In this issue we are going to do something a little different and look at the language used for the names of this masechet and seder as means for setting the tone for our continuing study.

The Rambam in his introduction to Mishnahpoints out that the first three masechtot – Bava Kama, Bava Metzia and Bava Batra – are really one masechet that has been divided into three.¹ Indeed the shinui neschaot cites a manuscript that refers to the three masechtot as masechet Nezikin and lists the chapters from one to thirty. The Tosfot Yom Tov notes that Masechet Keilim, another masechet made up of thirty chapters, in the Tosephta is also divided into three masechtot – Bava Kama, Bava Metzia and Bava Batra. 

Granted that kama, metzia and batra mean first, middle and last, how do we understand the term “bava”. The Tosfot Yom Tov explains that we find the word in the targum (translation) to megillat Ester,² as a translation of the word sha’ar, meaning gate. He notes that there are many sefarim that divide the work into sections naming each as a sha’ar or petach. He continues explaining that it is fitting that the term given to a section of Mishnah be “sha’ar”. When learning the Torah she’bichtav, the “gates” to understand the minutia of Torahlaw are closed. It can appear difficult to derive legal conclusion with certainty. The Mishnah, Torah She’Be’Al Pe, unlocks the gates to reveal Torah wisdom. 

However as we enter the first gate, we are immediately struck with a difficulty. The Mishnah starts by explaining that there are four categories (avot) of “Nezikin”. What is the meaning of the word? Since it is also the name of the seder it is worthwhile understanding it meaning.

The Tosfot Yom Tov cites the Ran who explains that the term nezikin always means, that which causes nezek (damage). The difficulty with that explanation is that a more appropriate word should have been “mazikim” as a mazik means something that causes damaged.

The Tosfot Yom Tov therefore explains that term nezikin is constructed from two different tenses – passive (nifal) and active (mafil). The passive tense would be nizakin and the active mazikim.  He continues that it should have written mazikin however the nun was used in the beginning to introduce the passive tense, yet the yud remained indicated the active tense. Why? The Tosfot Yom Tov explains that in truth the one that cause damage is himself damaged - “ki nakeh lo yinake”. 

We could suggest therefore that the very name of the seder sets the tone for the seder. When it comes to much of the civil law that will be studied, there is a tendency to think that the matters are purely financial. If damage is caused, compensation should be paid and the matter is over. One might wrongly conclude that they can cause damage as long as the compensation is paid. The Rishonim however note that there are prohibitions transgressed by the mere act of causing (or allowing) damage. Some point to pesukim like “Do not steal” (R’ Yonah) or pesukim that demand responsibility is taken for one’s property. Yet others however look to different, broader ethical imperatives as the source of the prohibition – “love your neighbor like your self” (Yad Rama), “her ways are ways of pleasantness and all her paths are peace” (Shut Ha’Rosh) and the obligation to return a lost item (Rashash). The Seder is therefore given the name with an odd grammatical construct to teach that we are not only going to learn about resolutions to financial disputes but the correct ethical behavior as well.

¹ This is actually a debate in the Gemara (102) between Rav Yosefand Rav Huna. The Tosfot Yom Tov understands that the Rambam rules like Rav Yosef (see inside).

² At this point it is worth noting that we are now situated between last week’s parashah of Mishpatim, which contains the source of many of the laws we will be learning, and Purim that is next week.

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